interactions between the media and the - murdoch university
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Interactions Between the Media and the Criminal Justice System 193
INTERACTIONS BETWEEN THE MEDIA AND THE
CRIMINAL JUSTICE SYSTEM
CHRISTOPHER TOWNSEND*
Abstract
The criminal justice system and the media interact in various capacities. The
reliance of the public on the information perpetuated by the media in
relation to proceedings within the criminal justice system has significantly
translated into a decrease in faith within the community. Previous studies
have shown that when presented with media accounts of crime, in
comparison to the full account of the proceedings participants were less
likely to be satisfied that justice had been done. Taking this into account is
important within the field of criminal law, as this decrease of faith is current
and can translate to a decrease of community unity, an increase of vigilante
acts, and less reporting of crime. Action on the part of the executive is
important in addressing this issue to ensure faith in the system is restored.
I INTRODUCTION
The interaction of the media with the Australian criminal justice system has
a significant impact on the community‟s perception of the effectiveness and
perpetuation of justice. Selective coverage of criminal trials, agenda
setting, as well as information framing are all methods which produce the
media‟s prominent entertainment role.1 The reliance of the public on the
* Juris Doctor Student at Murdoch University, BA (Psychology). 1 Richard L Fox, Robert W Van Sickel & Thomas L Steiger, Tabloid Justice: Criminal
Justice in an Age of Media Frenzy (2nd
ed, 2007), 9.
194 The Western Australian Jurist
media for information as well as entertainment poses a disparity between
objectives pursued, and objectives gained. However, the public still
continues to rely on the media as a means to understand and assess the
criminal justice system and the process contained within.2
What this research intends to achieve is a deeper understanding of how the
media interacts with the criminal justice system and how this translates into
the public‟s confidence, or lack thereof, in the perpetuation of justice. It
will show how the media purports to favour reporting methodology that
elicits negative perceptions of the justice system and how this translates
into the public‟s lack of faith in that system. Having an understanding of
how the media‟s interaction with the criminal justice system translates into
the public‟s articulation of what constitutes a „crime‟, and more
importantly, what constitutes „justice‟ is of great importance within the
scope of criminology and criminal law.3 Utilizing this understanding by
developing statutory reforms and media moderation, we can increase the
community‟s support of the criminal justice system, and restore faith in the
process contained within.
II OBJECTIVES OF THE MEDIA
The objectives of the media within the scope of the criminal justice system
can be seen to have been derived from various sources. The overarching
want to inform, educate and entertain are the foundations of what
2 Gregg Barak, „Mediatizing Law and Order: Applying Cottle‟s Architecture of
Communicative Frames to the Social Construction of Crime and Justice‟ (2007) 3
Crime Media Culture 101, 101. 3 Ibid.
Interactions Between the Media and the Criminal Justice System 195
Australian media sources purport to strive toward4. The ability of the media
to bring events into the community‟s lives, no matter how remote, and to
make them observable and meaningful comes within the scope of these
objectives5. However as can be repeatedly seen the “educational function of
the press is undermined by its entertainment role”.6 Thus what is professed
to be informative, meaningful and educational, is an entirely different final
product. The media would argue in return, as they often have,7 that the way
in which they report a story or set of facts comes within the notion of free
press or free speech, and in the case of criminal proceedings, the accused‟s
right to a fair trial.
A Free Speech/Press and the Media
The most historically contentious of these arguments is the notion that the
community has the liberal ability to express oneself through free speech or
in the case of the media, free press. However, unlike in the US where such
a philosophy is entrenched within their constitution,8 Australia does not
have the same provision.9 Justice Kirby also stated that such freedoms had
no reliance on legal guarantees, however have their basis upon antiquated
4 Websites of major television networks: http://www.7perth.com.au,
www.9perth.com.au, www.ten.com.au 5 Harvey Molotch and Marilyn Lester, „News as Purposive Behavior: On the Strategic
Use of Routine Events, Accidents and Scandals‟ (1974) 39 American Sociological
Review 101, 101. 6 Richard L Fox, Robert W Van Sickel and Thomas L Steiger, Tabloid Justice:
Criminal Justice in an Age of Media Frenzy (Lynne Rienner, 2nd
ed, 2007), 6. 7 Nationwide News v Wills (1992) 177 CLR 1; Australian Capital Television v
Commonwealth (1992) 177 CLR 106. 8 The Constitution of the United States, Amendment 1.
9 Michael Kirby, „Reform and the Fourth Estate‟ in Reform the Law: Essays on the
Renewal of the Australian Legal System (Oxford University Press, 1983), 171, 172.
196 The Western Australian Jurist
tradition.10
This tradition has been reinforced by the community‟s
continued desire to be kept up-to-date with the news and current affairs11
,
especially those of which are crime-related.12
The basis of free speech can be found within the writing of eminent
philosopher John Stuart Mill who went so far as to say that:
There ought to exist the fullest liberty of professing and discussing, as a
matter of ethical conviction, any doctrine, however immoral it may be
considered. 13
He did qualify this seemingly broad notion by saying that;
The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others. 14
In doing so he placed appropriate limits upon what he professed constituted
free expression. This idea is contrary to that put forth by Professor Stanley
Fish, who claims „there is no such thing as free speech‟15
and that any
claim to such is invalid for the following reason:
10
Michael Kirby, „Reform and the Fourth Estate‟ in Reform the Law: Essays on the
Renewal of the Australian Legal System (Oxford University Press, 1983) 171,173. 11
Richard L Fox, Robert W Van Sickel and Thomas L Steiger, Tabloid Justice:
Criminal Justice in an Age of Media Frenzy (Lynne Rienner, 2nd
ed, 2007), 7. 12
Julian V Roberts and Anthony N Doob, „News Media Influences on Public Views of
Sentencing‟ (1990) 14 Law and Human Behavior 451, 452. 13
Can be found in the footnotes of Chapter II in; John Stuart Mill, On Liberty (1859),
31. 14
Ibid. 15
Stanley Fish, There’s No Such Thing as Free Speech (Oxford University Press, 1994)
104.
Interactions Between the Media and the Criminal Justice System 197
When one speaks to another person, it is usually for an instrumental
purpose: you are trying to get someone to do something, you are trying to
urge an idea and, down the road, a course of action. These are reasons for
which speech exists and it is in that sense that I say that there is no such
thing as “free speech”, that is, speech that has its rationale nothing more
than its own production.16
How these two ideas can be reconciled within the realm of free speech and
press surrounding the criminal justice system are encapsulated by Lord
Hewart, in Rex v Sussex where he said: „Justice should not only be done,
but should manifestly and undoubtedly be seen to be done.‟17
Within this quote it can be seen that whilst it is argued by Professor Fish
that speech is purposive, and by John Stuart Mill that speech should be
free, these ideas can and do overlap within the media‟s interaction with the
criminal justice system. The media has a purpose with its information
delivery, and relies upon the traditional value of „free speech‟ in order to
tailor that information for such. These values have been attempted to be
aligned with the constitutional implied freedom of political communication
with limited success.18
The implied freedom of political communication within Australia is a
freedom which has developed with reference to provisions in the Australian
constitution19
and an increasing amount of case law. Its origin can be traced
16
Ibid. 17
Rex v Sussex Justices, ex parte McCarthy [1924] 1 KB 256. 18
Hogan v Hinch [2011] HCA 4. 19
Commonwealth of Australia Act (Cth), ss 7, 24, 25, 61 and 61.
198 The Western Australian Jurist
back to two cases; Nationwide News Pty Ltd v Wills (Nationwide)20
and
Australian Capital Television Pty Ltd v Commonwealth (ACTV).21
Chief
Justice Mason in ACTV described the freedom as being indispensable to the
accountability of legislative and executive powers and that:
Only by exercising that freedom can the citizen communicate his or her
views on the wide range of matters that may call for, or are relevant to,
political action or decision. Only by exercising that freedom can the citizen
criticize government decisions and actions, seek to bring about change, call
for action where none has been taken and in this way influence the elected
representatives. 22
However this seemingly straightforward right to free communication of
ideas was qualified within the same judgment by Brennan J, who posited
that any freedom was a restriction on legislation rather than an inherent
personal right. He said:
Unlike freedoms conferred by a Bill of Rights in the American model, the
freedom cannot be understood as a personal right the scope of which must
be ascertained in order to discover what is left for legislative regulation;
rather it is a freedom of the kind for which s 92 of the Constitution provides:
an immunity consequent on a limitation of legislative power. 23
And finally Deane and Toohey JJ stated that:
20
Nationwide News Pty Ltd v Wills (Nationwide) (1992) 177 CLR 1. 21
Australian Capital Television Pty Ltd v Commonwealth (ACTV) (1992) 177 CLR 106. 22
Ibid 137. 23
Ibid150.
Interactions Between the Media and the Criminal Justice System 199
In determining whether a purported law conflicts with the implication,
regard must be had to the character of the impugned law A law prohibiting
or restricting political communications by reference to their character as
such will be consistent with the prima facie scope of the implication only if,
viewed in the context of the standards of our society, it is justified as being
in the public interest.24
These original comments by the High Court formed the basis of a test to
determine whether the legislation infringes upon this implied freedom. This
test was originally constructed within the case Lange v Australian
Broadcasting Corporation,25
was later modified in Coleman v Power26
and
is still applied currently.27
What it asks of the legislation, is whether the law
burdens the implied freedom and if so, does it do so in a reasonably
appropriate manner to serve a legitimate end.28
If the law does burden the
implied freedom without a legitimate end or in a disproportionate manner,
then it will be taken to have infringed the implied constitutional limitation.
Otherwise it will be considered reasonably appropriate. Media outlets have
attempted to utilize the implied freedom of political communication in a
similar fashion as free speech rights available under the First Amendment
in the US. The contention that communications such as reporting
information from criminal trial proceedings „do not lose protection of the
freedom recognised in Lange because they also deal with the
24
Australian Capital Television Pty Ltd v Commonwealth (ACTV) (1992) 177 CLR 106,
169. 25
Lange v Australian Broadcasting Corporation (1997) 189 CLR 5. 26
Coleman v Power (2004) 220 CLR 1. 27
Hogan v Hinch [2011] HCA 4. 28
Lange v Australian Broadcasting Corporation (1997) 189 CLR 5; Coleman v Power
(2004) 220 CLR 1.
200 The Western Australian Jurist
administration of justice by the courts of a State‟29
was discussed in recent
case law, such as Hogan v Hinch.
French CJ accepted in that case:
The range of matters that may be characterised as “governmental and
political matters” for the purpose of the implied freedom is broad. They are
not limited to matters concerning the current functioning of government.30
However Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ qualified
this by adding there must be a “direct” rather than “incidental” burden upon
the communication31
. Whilst this latest development within the scope of the
implied freedom of political communication does little to entrench the
ability of the media to utilize such as a means to deliver information to the
public; it does potentially allow for future development due to the broad
scope enunciated by French CJ.
B Right to a Fair Trial and the Media
As well as the free speech and press argument in favour of the media‟s
reporting ability, the right to a fair trial is also important to consider. The
right to a fair trial is outlined in the International Covenant on Civil and
Political Rights and as Article 14(1) makes clear an essential aspect of this
is a public hearing:
29
Hogan v Hinch [2011] HCA 4, 94. 30
Ibid 49. 31
Ibid 95, and as discussed by Gleeson CJ in Mulholland v Australian Electoral
Commission (2004) 220 CLR 181.
Interactions Between the Media and the Criminal Justice System 201
All persons shall be equal before courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit
at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press
and the public may be excluded from all or part of a trial for reasons of
morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or
to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but
any judgment rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or
the proceedings concern matrimonial disputes or the guardianship of
children. 32
This article is replicated in a variety of other international instruments to
which Australia is a party, further entrenching their importance. The
Universal Declaration of Human Rights reinforces the presumption of
innocence as well as reinforcing the principles set forth in the
abovementioned articles when it provides in Article 11(1):
Every person charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence.33
As also can be seen within this Article, reference to a public trial is a
central notion in the delivery of justice in a fair and humane manner.
32
International Covenant On Civil And Political Rights, adopted and open for
signature, ratification and accession by General Assembly resolution 2200A(XXI) of
16 December 1966 (entered into force 23 March 1976, in accordance with Article 49);
Article 14. 33
Universal Declaration Of Human Rights, Article 11(1).
202 The Western Australian Jurist
The idea of a public trial is one which is found at the core of our common
law principles of fair and just criminal proceedings34
. It is considered
necessary because it allows public and professional scrutiny of decisions in
order to prevent any miscarriage of justice35
and maintains confidence
amongst the community of the court system‟s integrity.36
As such a public
trial implies the ability of the public to attend proceedings, as well as the
reporting and publication of the proceedings.
The objectives of the media in terms of information delivery to the
community can seemingly create issues as to the apparent nature of this
freedom in practice. On the one hand, the increasing coverage of the media
during criminal proceedings can hinder the ability of a jury to be impartial,
and thus burden this right to a fair trial.37
However, it can be argued that the
coverage of said proceedings, allows for greater public scrutiny, and
overall will increase the occurrence of trials conducted with regard to this
inherent right38
. Exceptions to this principle of the public trial occur in
instances where the court feels it necessary to impose an order suppressing
details of the proceedings.39
34
Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495. 35
Russell v Russell (1976) 134 CLR 495. 36
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47. 37
Richard L Fox, Robert W Van Sickel and Thomas L Steiger, Tabloid Justice:
Criminal Justice in an Age of Media Frenzy (2nd
ed, 2007). 38
Andrew T. Kenyon, „Not Seeing Justice Done: Suppression Orders in Australian Law
and Practice‟ (2006) 27 The Adelaide Law Review 279, 282. 39
s171 Criminal Procedure Act 2004 (WA).
Interactions Between the Media and the Criminal Justice System 203
III THE COURTS‟ POWER TO REGULATE THE MEDIA
As discussed above there are exceptions to the principle of an open court
that can be found in common law and are supplemented by statute.40
Accordingly, there are three broad categories of suppression orders within
the jurisdiction of Australia.41
Firstly at common law, if an open court
would jeopardise the proper administration of justice the common law
allows the court to suppress the proceedings.42
Superior courts have this
inherent power to issue such orders in these instances43
. Also if there is a
public policy interest, such as that of national security or the safety of
individuals, the court has a similar power.44
However, this potentially broad
power has only been invoked in limited circumstances in past case law.45
Secondly, some statutes restrict reporting in instances involving children
under the age of 1846
, victims of sex-related crimes,47
or matters within the
scope of the Family Law Act 1975 (Cth).48
Finally, a statutory discretion is
40
Andrew T. Kenyon, „Not Seeing Justice Done: Suppression Orders in Australian Law
and Practice‟ (2006) 27 The Adelaide Law Review 279, 288. 41
Australia‟s Right to Know, Report of the Review of Suppression Orders and the
Media’s Access to Court Documents and Information, 13 November 2008. 42
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of
New South Wales (1991) 26 NSWLR 131. 43
Andrew T. Kenyon, „Not Seeing Justice Done: Suppression Orders in Australian Law
and Practice‟ (2006) 27 The Adelaide Law Review 279, 288. 44
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of
New South Wales (1991) 26 NSWLR 131. 45
Andrew T. Kenyon, „Not Seeing Justice Done: Suppression Orders in Australian Law
and Practice‟ (2006) 27 The Adelaide Law Review 279, 288. 46
Children’s Court of Western Australia Act 1988 s35(1); Children And Young Persons
Act 1989 (VIC) s26; Young Offender’s Act 1993 (SA) ss59, 59A. 47
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s40; Sexual Offences (Evidence
And Procedure) Act 1983 (NT) ss6-13; Crimes Act 1906 (NSW) s578A; Criminal Law
(Sexual Offences) Act 1978 (QLD) ss6-11; Evidence Act 1929 (SA) s71A; Evidence
Act 2001 (TAS) ss194K, s194L; Judicial Proceedings Act 1958 ss3,4; Evidence Act
1906 (WA) s36C. 48
Family Law Act 1975 (Cth).
204 The Western Australian Jurist
provided for judicial officers of any court to issue an order in certain
circumstances.49
A Common Law Origins of the Courts’ Power to Regulate the Media
The common law has developed more so in recent history to allow judicial
officers the discretion to impose orders suppressing information gathered
within the courtroom, and thus preventing the media from publishing any
of the proceedings.50
Whilst on one view the courts have no general
authority to make orders to bind non-parties and their conduct outside the
courtroom,51
it has been found that conduct outside the court frustrating the
endeavours of justice can be considered contempt of court.52
Also the use
of pseudonyms, and orders binding parties of the case can be used
regardless.53
An early, yet eminent consideration of the idea of open proceedings was
expressed by Haldane LC in Scott v Scott54
where he stated that the
imperative role of courts is „to do justice‟.55
With relation to publicity, Earl
Loreburn in the same case noted that the principles and rules expressed by
Haldane LC can be disregarded when necessity compels departure.56
The
49
S171 Criminal Procedure Act 2004 (WA). 50
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47. 51
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47. 52
Discussed in Hogan v Hinch [2011] with reference to John Fairfax & Sons Ltd v
Police Tribunal (NSW) (1986) 5 NSWLR 465. 53
Draft Court Suppression And Non-Publication Orders Bill 2009 (WA). 54
Scott v Scott [1913] AC 417. 55
Scott v Scott [1913] AC 417, 437. 56
Hogan v Hinch [2011] HCA 4 as per French CJ; R v Macfarlane; Ex Parte
O’Flanagan and O’Kelly (1923) 32 CLR 518 as per Isaacs J.
Interactions Between the Media and the Criminal Justice System 205
idea that the administration of justice required in some instances the closing
of the court to the public and the media required some development as to
what constituted a valid reason in the circumstances. Restrictions merely
based on unsavoury evidence,57
morality58
or embarrassment to one or
more of the parties59
have all been found to not constitute sufficient
justification to undermine the open court and justice principle. This was
acknowledged by Kirby P in John Fairfax Group Pty Ltd (Receivers and
Managers Appointed) v Local Court of NSW where he noted:
It has often been acknowledged that an unfortunate incident of the open
administration of justice is that embarrassing, damaging and even dangerous
facts occasionally come to light. Such considerations have never been
regarded as a reason for the closure of courts, or the issue of suppression
orders in their various alternative forms.60
Reasons that have been considered exceptions to this principle, were
identified by Einstein J in his judgment of Idoport Pty Ltd v National
Australia Bank Limited & Ors as including:61
(a) Cases where trade secrets, secret documents or communications or
secret processes are involved;
(b) Cases where disclosure in a public trial would defeat the whole object of
the action (as in blackmail cases or cases involving police informers);
(c) Cases involving the need to keep order in court;
(d) Cases involving (in certain circumstances) national security;
57
R v Hamilton (1930) 30 SR (NSW) 277. 58
Scott v Scott [1913] AC 417. 59
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10. 60
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of
NSW (1991) 26 NSWLR 131, 142. 61
Idoport Pty Ltd v National Australia Bank Limited & Ors [2001] NSWSC 1024, 20.
206 The Western Australian Jurist
(e) Cases involving the performance of administrative or other action that
may be properly dealt with in chambers
(f) Cases where the court sits as parens patriae involving wards of the state
or those with mental illness.
As can be seen within this direction of case law, the proper administration
of justice is the court‟s ultimate concern. If it is necessary to prevent the
public viewing and media publishing of proceedings in order to achieve
this end, then the court is within their power to make an order to that effect.
As stated by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of
NSW:
The principle of open justice also requires that nothing should be done to
discourage the making of fair and accurate reports of what occurs in the
courtroom. Accordingly, an order of a court prohibiting the publication of
evidence is only valid if it is really necessary to secure the proper
administration of justice in proceedings before it. Moreover, an order
prohibiting publication of evidence must be clear in its terms and do no
more than is necessary to achieve the due administration of justice. The
making of the order must also be reasonably necessary; and there must be
some material before the court upon which it can reasonably reach the
conclusion that it is necessary to make an order prohibiting publication.
Mere belief that the order is necessary is insufficient.62
As noted by McHugh JA in the passage above, the court must have
sufficient evidence in favour of making an order, and that evidence should
point in favour of suppressing proceedings in order to strive toward the fair
administration of justice. In consideration of these ideas, it is important to
62
John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465, 476.
Interactions Between the Media and the Criminal Justice System 207
take into account the statutory role in the regulation of the media and how
it interacts with the aforementioned common law.
B The Courts’ Ability to Regulate the Media And Statute
As well as the common law providing guidance as to both the open justice
principle and the use of suppression orders, statutory instruments are
utilized by parliament to provide further authorisations to courts to do so as
per French CJ:
Beyond the common law, it lies within the power of parliaments, by statute,
to authorise courts to exclude the public from some part of a hearing or to
make orders preventing or restricting publication of parts of the proceeding
or of the evidence adduced.63
Both Commonwealth and state or territory statutes have provisions that
reaffirm the principle of open justice. At the Commonwealth level, an
example of this can be seen in the Family Law Act 1975 where s97(1)
states:
Subject to subsections (1A) and (2), to the regulations and to the applicable
rules of Court, all proceedings in the Family Court, in the Federal
Magistrates Court, or in a court of a Territory (other than the Northern
Territory) when exercising jurisdiction under this act, shall be heard in open
court.64
63
Hogan v Hinch [2011] HCA 4, 27. 64
Family Law Act 1975 (Cth) s97; Other examples at Commonwealth level include the
Judiciary Act 1903 (Cth) s16 and the Federal Court of Australia Act 1976 s17.
208 The Western Australian Jurist
Similar provisions can be found in all jurisdictions in varying capacities65
such as within the Magistrates Court (Civil Proceedings) Act 2004 (WA)
where s45(1) provides:
All proceedings in the court‟s civil jurisdiction are to be conducted in open
court unless this act, the rules of court of another written law provides
otherwise.66
This can also be found in Victoria in the equivalent Magistrates Court Act
1989 (Vic) where s125(1) allows:
All proceedings in the Court are to be conducted in open court, except
where otherwise provided by this or any other Act or the rules.67
Other statutes may not expressly provide for this principle however can be
implied through other provisions that require orders to be made for the
exclusion of the public whilst still taking into account the common law
principle of open justice.68
This can be seen in s18(1) of the Supreme Court
Act 1986 (Vic) which does exactly that:69
The court may in the circumstances mentioned in section 19 –
(a) Order that the whole or any part of a proceeding be heard in
closed court; or
65
Magistrates Court Act 1930 (ACT) s310; Coroners Act 1980 (NSW) s30; Summary
Procedure Act 1921 (SA) s61; Magistrates Court (Civil Division) Act 1992 (TAS);
Magistrates Court (Civil Proceedings) Act 2004 (WA) s45(1); Magistrates Court Act
1989 (Vic) s125. 66
Magistrates Court (Civil Proceedings) Act 2004 (WA) s45(1). 67
Magistrates Court Act 1989 (Vic) s125. 68
Supreme Court Act 1986 (Vic). 69
Supreme Court Act 1986 (Vic) s18(1).
Interactions Between the Media and the Criminal Justice System 209
(b) Order that only persons or classes of persons specified by it may
be present during the whole or any part of a proceeding; or
(c) Make an order prohibiting the publication of a report of the
whole or any part of a proceeding or of any information derived
from a proceeding.
Whilst this statute does not expressly provide for the public‟s ability to
access and view proceedings, this provision allows for this to be implied. It
also has the purpose of giving the court discretion as to when the power
should be utilized within the ambit of the circumstances detailed in s19.
However this discretion is usually quite strict and as put forth by Kirby P,
„utilized only when clearly necessary‟.70
French CJ adds to this by saying:
Where it is left by statute to a court‟s discretion to determine whether or not
to make an order closing part of a hearing or restricting the publication of
evidence or the names of parties or witnesses, such provisions are unlikely
to be characterised as depriving the court of an essential characteristic of a
court and thereby rendering it an unfit repository for federal jurisdiction.
Nevertheless, a statute which affects the open-court principle, even on a
discretionary basis, should generally be construed, where constructional
choices are open, so as to minimise its intrusion upon that principle.71
Courts around Australia have varying discretions to utilize provisions such
as previously mentioned, to impose an order restricting the media‟s ability
to publicise information about the proceedings. However in a lot of cases
this is done unnecessarily, with the statute governing the proceedings
70
Re Applications by Chief Commissioner of Police (Vic) (2004) 9 VR 275. 71
Hogan v Hinch [2011] HCA 4, 27.
210 The Western Australian Jurist
already containing a presumption of information suppression.72
This
includes proceedings that involve children as can be seen in the Children’s
Court of Western Australia Act 1988 amongst many others, where s35(1)
details:73
Except where done in accordance with an order made under section 36A or
in accordance with the Prohibited Behaviour Orders Act 2010 section 34, a
person shall not publish or cause to be published in any newspaper or other
publication or broadcast or cause to be broadcast by radio or television a
report of any proceedings in the court, or in any court on appeal from the
court, containing any particulars or other matter likely to lead to the
identification of a child who is concerned in those proceedings –
(a) As a person against whom the proceedings are taken:
(b) As a person in respect of whom the proceedings are taken:
(c) As a witness: or
(d) As a person against or in respect of whom an offence has or is alleged to
have been committed.
Similar provisions containing this presumption can be found protecting
adoption proceedings,74
sexual offences75
and similar sensitive topics.
Statutes that do not have this inherent presumption of information
suppression contained within can still provide a power to the court to make
72
Andrew T Kenyon, „Not Seeing Justice Done: Suppression Orders in Australian Law
and Practice‟ (2006) 27 The Adelaide Law Review 279, 288 which discusses the
„doubling up‟ of suppression orders, and already statutory guards for type of
proceeding. 73
Children’s Court of Western Australia Act 1988 s35 (1); Children and Young Persons
Act 1989 (Vic) s26; Young Offender’s Act 1993 (SA) ss59, 59A. 74
Adoption Act 1988 (SA); Adoption Act 1984 (Vic) ss120-121. 75
Evidence (Miscellaneous Provisions) Act 1991 (ACT) s40; Sexual Offences (Evidence
And Procedure) Act 1983 (NT) ss6-13; Crimes Act 1906 (NSW) s578A; Criminal Law
(Sexual Offences) Act 1978 (QLD) ss6-11; Evidence Act 1929 (SA) s71A; Evidence
Act 2001 (TAS) ss194K, s194L; Judicial Proceedings Act 1958 ss3,4; Evidence Act
1906 (WA) s36C.
Interactions Between the Media and the Criminal Justice System 211
a non-publication order. However publication is not limited, unless such an
order is made by the court.
C The Media’s Ability to Challenge Suppression Orders
When such an order is made by the court, it is important to consider what
ability the media has to challenge this restriction of publication. It is an
established principle that the media has standing to challenge orders
restricting publication of material within proceedings with restriction.76
As
discussed in Nationwide News v District Court (NSW) by Mahoney P:
To hold that media interests have a right to be heard upon such applications
in the sense that they are, in the ordinary way, parties to them, would create
a situation which would be unjust to the parties to the trial and would
interfere with the fairness of the trial; see John Fairfax & Sons Ltd v Police
Tribunal of NSW.77
However taking into account that obvious restriction on the media‟s
standing within proceedings he notes that:
In my opinion each media interest has a less choate and less extensive
entitlement. It is not necessary for present purposes to attempt to mark out
finally the precise boundaries of that entitlement. It is sufficient to hold that
(subject to what I shall say) it is entitled to make an application to vary or
terminate an order of the relevant kind and to have that application heard.78
76
Re Bromfield; Ex Parte West Australian Newspapers Ltd [1991] (Unreported,
Malcolm CJ, Rowland & Nicholson JJ, 21 June 1991). 77
Nationwide News v District Court (NSW) 40 NSWLR 486, 489. 78
Ibid.
212 The Western Australian Jurist
In circumstances where the media is present throughout the proceedings,
and a proposed suppression order will bind the media authority, standing to
be heard in this instance is also established. As noted:
If the media interest is in fact present when an application is made by the
parties for a suppression order and the suppression order sought will bind
the media interest, it is to be expected that ordinarily the trial judge will hear
the media interest if it desires to be heard, at least to the extent that is
consistent with justice of the trial.79
Similar case law can be found in other jurisdictions establishing that the
media has standing in certain proceedings. In Re Bromfield; Ex Parte West
Australian Newspapers Nicholson J found that the media are different to
that of other members of the public in that they are especially aggrieved by
the implementation of suppression orders and thus should be given the
opportunity to argue such. He stated:
The applicant is truly a “person aggrieved” by the determination as a
consequence of the evidence relating to the nature of its business. Its
business distinguishes it from members of the general public having no
particular interest in the matter.80
Even though such cases in these jurisdictions have been found to give the
ability to the media to challenge suppression orders, Victoria is peculiar in
that media lawyers have expressed concern that provisions in the Supreme
79
Ibid 490. 80
Re Bromfield; Ex Parte West Australian Newspapers Ltd [1991] (Unreported,
Malcolm CJ, Rowland & Nicholson JJ, 21 June 1991).
Interactions Between the Media and the Criminal Justice System 213
Court Act have removed the right of appeal regarding this issue81
. This can
be seen in s17A(3) which provides:
Except as provided in Part 6.3 of Chapter 6 of the Criminal Procedure Act
2009, an appeal does not lie from a determination of the Trial Division
constituted by a Judge of the Court or constituted by an Associate Judge
made on or in relation to the trial or proposed trial of a person on
indictment.
With the position in Victoria being that a suppression order is an
interlocutory order, and therefore cannot be challenged until the conclusion
of the proceeding82
, it also means that rights of appeal within s17A(3) of
such an order, as provided in Part 6.3 of the Criminal Procedure Act 2009
are limited as previously discussed.
These limitations upon the media‟s ability to report on proceedings within
the court, in conjunction with their choices as to what to report and what
methodology of reporting to utilize, both interact and impact the
community‟s general perception of the justice system.
IV IMPACT OF THE MEDIA
The impact of the media upon the community‟s perception of the justice
system is one which requires deep consideration. As noted by Martin CJ in
an eminent speech:
81
Australia‟s Right to Know, Report of the Review of Suppression Orders and the
Media’s Access to Court Documents and Information, 13 November 2008, 21. 82
Ibid.
214 The Western Australian Jurist
The difficulty is that people will take the cases about which they read or
hear as representative of the justice system as a whole when, in fact, they
are only representative of cases which have this character of
“newsworthiness”.83
The choice of media outlets of which cases to report can greatly shape
expectations of the public, with only a small number of judgments reported
upon. As such:
They might read or hear about, say, 50 cases each year in which it might be
suggested that a sentence imposed upon an offender was lenient. They will
not hear or read of the 90,000-odd cases in which there is no such
suggestion. But they will take the 50 cases of which they know to be
representative of the system as a whole, when in fact they are anything
but.84
As discussed previously, orders by the court may have suppressed the
ability of the media to publish proceedings in the court. But whether or not
this is a significant reason behind the choice of case reporting on behalf of
the media is worthy of discussion. Looking toward statistics provided by
courts of WA in 2008 we can see recorded suppression orders remaining
similar in 2006-2007, however a significant increase in 2008:85
Jurisdiction 2006 2007 2008
(until 31 July)
83
The Hon Wayne Martin, Chief Justice of Western Australia, „Improving Access to
Justice: The Role of The Media‟ (Speech delivered at Curtin University, Western
Australia, 15th
October 2009). 84
Ibid. 85
Australia‟s Right to Know, Report of the Review of Suppression Orders and the
Media’s Access to Court Documents and Information, 13 November 2008, 40.
Interactions Between the Media and the Criminal Justice System 215
Supreme Court 17 29 4
District Court 50 30 32
Magistrates Courts 42 36 37
Children‟s Court 0 6 3
Coroner‟s Court 1 1 2
Total 110 102 75
A marked difference to that which can be found in suppression orders
recorded in only the Supreme and District Courts of SA:86
Jurisdiction 2006 2007 2008
(until 30 June)
Supreme &
District Court
227 245 77
Total 227 245 77
Noting the differences between the two states can see a significant increase
in the pro-rata statistic for 2008 in WA in comparison to previous years;
comparable to a significant decrease in SA. Commentators have noted the
increase in WA was most likely due to an influx of sexual assault charges
made in remote Kimberley Aboriginal communities during 2008, and thus
due to the inherent protection discussed previously in the Evidence Act; not
indicative of judges use of discretion to suppress proceedings.87
SA on the
other hand has seen a marked decrease in the number of suppression orders
recorded. Commentators have been unable to pinpoint reasons as to why
86
Ibid. 87
Ibid.
216 The Western Australian Jurist
this is, however some have suggested that new provisions within the
Evidence Act,88
have allowed greater scope for challenging these orders.
These statistics show that there is a restriction on media outlets to comply
with orders when made by the court. In doing so this may restrict which
cases and how such cases are reported on. However when there is no such
restriction, a large discretion on what to report is bestowed upon the
reporters and the media outlets. Theories on the effects of this discretion
have developed over the past 50 or so years, and therefore give us an
opportunity to understand the impact on members of the criminal justice
process, as well as the general public.
A Theoretical Background on the Impact of the Media
Researchers in the field of communications, media, public relations and
many other disciplines have developed various theories and models
explaining the effects of the media upon the public. These have been
consistently investigated, developed and then often disproved,89
however
what we have been left with is an extensive range of models designed to
cover various interactions between the media and the public. One of these
models was developed upon the decline of support for the Hypodermic
Needle Model, and was entitled the Cultivation Theory. This theory argues
that the media has long-term effects on the public, but these effects are
small, gradual and indirect. These gradual influences become significant
88
Evidence Act 1929 (SA) s 69A. 89
As in the case of the Hypodermic Needle Model of the 1920‟s which implies that the
media has a direct, immediate and powerful effect on its audiences, further disproved
by Lazarsfeld and colleagues as discussed in Scheufele, D, and Tewksbury,
D,„Framing, Agenda Setting, and Priming: The Evolution of Three Media Effects
Models‟ (2007) 57(1) Journal of Communication, 9, 10.
Interactions Between the Media and the Criminal Justice System 217
over an extended period of time and extended exposure to the medium.
This theory can be seen conceptually depicted as below:90
What this conceptual model illustrates is the suggestion that media is
responsible for shaping its viewers formulation of social reality. Whilst this
model, at a general level can include various mediums it can however be
restricted to the ambit to which this research involves:
Interestingly, most news directors nonetheless believe that the
preponderance of themes of danger and victimization in the news
desensitizes and depresses news consumers. Their beliefs are echoed by
many media critics and scholars.91
People who subject themselves to higher levels of exposure are therefore
more likely to be influenced by the ways in which the world is framed by
the media to which they expose themselves.92
Studies have shown that
heavy viewers of mass media were more fearful of „walking alone at night‟,
and also tended to overestimate the prevalence of violent crimes.93
What
90
Hawkins R P and Pingree, S „Television‟s Influence on Social Reality‟ in Wartella, E,
Whitney, D and Windahl, S (eds) Mass Communication Review Yearbook, Vol 5
(Sage, 1983) 53. 91
Dolf Zillmann and Silvia Knobloch, „Emotional Reactions to Narratives about the
Fortunes of Personae in the News Theater‟ (2001) 29 Poetics 189, 190. 92
Gerbner, G, and Gross, L,„The Scary World of TV‟s Heavy Viewer‟ (1976b) 10(4)
Psychology Today, 41, 44. 93
Ibid.
218 The Western Australian Jurist
this model therefore indicates is that the general conceptualization of the
world on the part of the media can have a distinct effect on the public‟s
understanding of the same. By the media constantly choosing to depict
crimes of a violent nature and cases where sentences are likely to be
viewed to be lenient this model would argue that based upon previous
research, it is likely that viewers who are exposed to this kind of reporting,
are more likely to overestimate the prevalence of violent crimes94
and
furthermore believe that sentencing in general is lax within the justice
system. The more this relationship evolves the more the consumer becomes
dependent on the media outlet for information.95
From this the Dependency
Theory and model of media systems was derived. This theory proposes that
an integral relationship is born between the media, the consumer and the
consumer‟s social group. As illustrated below:96
What is depicted within this conceptual model is that, consumers depend
on media information to meet certain needs and achieve certain goals.
These goals can vary based on their social network, and their degree of
dependency. How this model interacts with the Cultivation Theory is
94
Ibid. 95
Ball-Rokeach, S J, and DeFleur, M L „A Dependency Model of Mass-Media Effects‟
(1976) 3 Communication Research 3, 5. 96
Ibid 7.
Interactions Between the Media and the Criminal Justice System 219
interesting to note. Negative themes perpetuated by media reports have
been found to hold great appeal to audiences regardless of the shaping
effect theorized by the Cultivation Theory occurring.97
Instead, often
audiences seek out media that is adverse even in the form of negative
„reality‟ programming.98
The continual seeking out of media that is
negative can be considered to be odd, considering the adverse emotional
reactions undoubtedly present within the viewer.99
However this can be
resolved with reference to biological factors as discussed in relevant
research:
The “hedonistic paradox” of the appeal of aversion-evoking narratives tends
to be resolved by referral to biological factors, specifically to motives
serving self-preservation. The inclination to continually screen one‟s
environment for threats and dangers, in view of its obvious survival value
through the millennia, is thought to be evolutionary defined and thus deep-
rooted. This supposition is actually endorsed, although often only implicitly,
by media representatives who attempt to justify the predominance of
misfortune themes in the news.100
What this means in terms of the previous two mentioned models is that
viewers are consistently being shaped by the media to which they subject
themselves to. For evolutionary, and biological reasons they are innately
likely to seek out media that is negative for self-preservation reasons. In
97
Dolf Zillmann and Silvia Knobloch, „Emotional Reactions to Narratives about the
Fortunes of Personae in the News Theater‟ (2001) 29 Poetics 189, 191. 98
J Haskins, „Morbid Curiosity and the Mass Media: A Synergistic Relationship’ in:
Crook, J A, Haskins, J B, and Ashdown, P G (eds), Morbid Curiosity and the Mass
Media: Proceedings of a Symposium (1984, University of Tennessee and the Garnett
Foundation, Knoxville), 2. 99
Dolf Zillmann and Silvia Knobloch, „Emotional Reactions to Narratives about the
Fortunes of Personae in the News Theater‟ (2001) 29 Poetics 189, 191. 100
Ibid, 191.
220 The Western Australian Jurist
doing so, they become more dependent on the media to fulfil the
„surveillance function‟101
and therefore meet these deeply rooted needs.
This dependence may vary depending on the position or role in which the
person plays within the criminal justice system; be it as a judge, jury
member or as a member of the public who passively accepts information
given without any connection to the proceedings.
B Judges and the Media
It is a commonplace assumption that judges within our criminal justice
system act in an impartial, fair and just manner. The maxim in Australia is
that:
No judge would be influenced in his judgment by what may be said by the
media. If he were, he would not be fit to be a judge. 102
This is a similar presumption to which the United States accepts as stated:
Judges are supposed to be men of fortitude, able to thrive in a hardy climate
and not sensitive to the winds of public opinion.103
However to state that judges are somehow immune to media
representations is axiomatically incorrect:
101
P Shoemaker, „Hardwired for News: Using Biological and Cultural Evolution to
Explain the Surveillance Function‟ (1996) 46 Journal of Communication 32, 32. 102
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation
(1982) 152 CLR 25 (the BLF case) per Gibbs CJ quoting Lord Salmon at 33. 103
Craig v Harney 331 US 367 (1947).
Interactions Between the Media and the Criminal Justice System 221
We live in a media culture to which no one is immune. Monarchs and popes
react to media pressures. That judges should not is a noble idea and one we
should cultivate. However, it is not a fact upon which law can safely be
based.104
In contrast it is argued that it is inherent within a judge‟s everyday tasks to
prevent him or herself from allowing prejudicial media, facts or
commentary from having any effect upon his or her final judgments:
It is the everyday task of a judge to put out of his mind evidence of the most
prejudicial kind that he has heard and rejected as inadmissible. It is not
uncommon for a judge to try a case which was the subject of emotional
public discussion before the proceedings commenced. I find it quite
impossible to believe that any judge of the Federal Court who may
ultimately deal with the proceedings in that court will be influenced in his
decision by anything he may have read or heard of the evidence given or
statements made at the inquiry.105
So the question that is asked of this information is how these conflicting
viewpoints reconcile with the previously discussed theoretical models and
theories. Even though judges may well have a greater ability to discern
legal fact from sensationalized fact perpetuated from the media, one cannot
assume that this will have no effect upon his or her attitudes or beliefs.
Core to the Cultivation Theory is that media has an influence over all
members of the public, regardless of their idiosyncrasies and central to the
Dependency Theory is that this influence will increase as the information
104
David Anderson, „Lessons From An Impeachment‟ [1999] 1 University of
Technology, Sydney Law Review 63, 64. 105
BLF Case (1982) 152 CLR 25.
222 The Western Australian Jurist
provided fulfils certain needs106
. Whilst judges will have a greater
understanding of the criminal justice system to that of an everyday citizen,
and thus the fulfilment of „evolutionary self-preservation‟ will not be
strived for through these means there are other needs to which judges may
rely upon. After all, advancement through judicial ranks is largely based
upon reputation, and ambition to progress careers is undoubtedly of
importance to many members of the judiciary:
It is not lack of ambition that makes men and women become judges and
elevation to the bench does not eradicate ambition. Lower judges aspire to
be higher judges, justices aspire to be chief justices and they all aspire to be
remembered kindly by history.107
This idea of self-interest was discussed by Gleeson CJ in Forge v
Australian Securities and Investments Commission:
Judges are commonly promoted (by executive governments) within courts
or within the judicial hierarchy. Such promotions may involve increased
status and remuneration. Throughout the history of this Court, most of its
members have arrived here by way of promotion. There may be some
people who would say that could erode independence and impartiality.108
Gleeson CJ goes on to qualify this statement by saying:
106
Ball-Rokeach, S J, and DeFleur, M L, „A Dependency Model of Mass-media effects‟
(1976) 3 Communication Research, 3, 6. 107
David Anderson, „Lessons From An Impeachment‟ [1999] University of Technology,
Sydney Law Review, 63, 65. 108
Forge v Australian Securities and Investments Commission [2006] HCA 44, 44.
Interactions Between the Media and the Criminal Justice System 223
It is not a matter to be dismissed lightly, but in the wider context it is not
decisive. It is difficult to legislate against the pursuit of self-interest.109
What the ideas of pursuing self-interest suggest is that the media could very
well influence a judge who is mindful of potential career progression
towards a more politically favourable judgement. In doing so they would
fulfil needs suggested within the dependent model of media consumption,
as well as influence his or her attitudes and perceptions as within the
cultivation model. However in a lot of cases to which the public are most
concerned about, the onus for a fair and just judgement can lay on the
shoulders of twelve everyday citizens. Removing the enhanced ability to
discern legal fact from media sensationalized jargon to which could be
attributed to judges, one would assume that these citizens would be more at
risk of falling victim to the media as a persuasion tool.
C Jury Members and the Media
It is well established that the role of the jury within the criminal justice
system is to answer questions of fact. They are the „sole judges of the facts‟
and the judge will merely direct them as to the „relevant legal principles‟
and their application within the scope of the case.110
But is admissible
evidence the sole influence on the jury member‟s final decision? It has
been discussed on many an occasion, with the consideration that jurors‟
decisions may be derived from a broad range of relevant sources including
109
Ibid. 110
Law Reform Commission of New South Wales, ‘Consultation Paper 4 – Jury
Directions’ (2008), 63.
224 The Western Australian Jurist
newspaper reports, radio and television news, advertising and the like111
.
Just how much an influence outside coverage plays and whether this
prevents the members of the jury from being impartial is open to
speculation.
It has long been accepted that the idea of jury members having no
predispositions and expectations is a legal fiction as stated in research by
Diamond, Casper and Ostergren:
The legal fiction that the jury operates on a blank slate, influenced only by
what it hears and sees in court, and not influenced by predispositions and
expectations.112
However not only is the purpose of the jury to establish questions of fact,
but it is to do this whilst representing the community113
. In doing so the
courts recognize that every member of the jury has their own opinions,
biases, prejudices and predispositions114
. In order for jury members to do
their job correctly, they must represent the community and the
community‟s wide range of opinions, biases, prejudices and
predispositions:
111
Edith Greene, „Media Effects on Jurors‟ (1990) 14 Law and Human Behavior 439,
440. 112
Diamond, Casper and Ostergren, „Blindfolding the Jury‟ (1989) 52 Law and
Contemporary Problems 247, 251. 113
Newton N Minow and Fred H Cate, „Who is an Impartial Juror in an Age of Mass
Media?‟ (1991) 40 American University Law Review 631, 656. 114
Ibid.
Interactions Between the Media and the Criminal Justice System 225
Among the twelve jurors there should be a cross-section of the community,
certainly not usually accustomed to evaluating evidence, but with varied
experiences of life and of the behaviour of people.115
In order for a jury member to represent the community they must be
informed. Some commentators state that the exclusion of „well-informed,
curious, even opinionated people‟ is of the same category as exclusion
based on sex, race or religion116
. American commentators go as far as to
say that:
While jurists agree that jurors need to be impartial, impartiality, as defined
by the Supreme Court and the experience of other countries that use jury
systems, does not mean uninformed or unopinionated. It does not require an
unrealistic, undesirable, and unobtainable robot-like ability to disregard
prior knowledge, whether obtained via the media or through first-hand
experience. Persons with such traits, if they exist, are poor choices for
jurors.117
So it can be deduced that commentators and judges alike have vouched for
jury members that are well-informed as to all forms of media surrounding
their community. After all they must be representative of the community,
and substantial members of the community engage with the various media
outlets. Whilst all this commentary surrounds the positives of jury members
who engage with media outlets prior to entering the criminal justice
system, some discussion as to their engagement whilst playing the role of
juror must be noted.
115
Criminal Law and Penal Methods Reform Committee of South Australia, Court
Procedure and Evidence (Third Report, 1975), 84. 116
Newton N Minow and Fred H Cate, „Who is an Impartial Juror in an Age of Mass
Media?‟ (1991) 40 American University Law Review 631, 656. 117
Ibid.
226 The Western Australian Jurist
Having established jurors as representative members of their community,
they are susceptible to the same interactions with the media as their friends
and relatives. Their version of social reality is likely to have been shaped
through their interactions with the media, and quite likely they have
become dependent on these interactions. Research into jurors‟ media
consumption habits in relation to their attitudes towards the case has shown
to be affected with significance. Barille in 1984 investigated this in an
attitudinal study, and found that people who rely on crime news were more
likely have entrenched views of crime that are heavily distorted and overly
violent118
. They were also more likely to believe courts favour criminals
over victims, and thus have an inherent sense of mistrust, and suspicion as
opposed to those who engage in less crime-news consumption.119
Finally,
they were also seen to support the use of force of police in the positive.120
What all this means, is that continued exposure to crime-related media may
well have an effect on jury members. However, these inherent effects of
consistent crime-news consumption are likely to be found within a
substantial portion of the community and thus be an issue we cannot
resolve. After all, they are still theoretically representative of the
community which is prosecuting the accused.
118
L Barille, „Television and Attitudes About Crime: Do Heavy Viewers Distort
Criminality and Support Retributive Justice?’ in R. Surette (ed) Justice and the
Media: Issues and Research (C.C. Thomas,1984), 141. 119
G Gerbner, L Gross, M Eleey, M Jackson-Beeck, S Jeffries-Fox and N Signorielli,
„TV Violence Profile No. 8: The Highlights‟ (1977) 27 Journal of Communication
171, 179. 120
L Barille, „Television and Attitudes About Crime: Do Heavy Viewers Distort
Criminality and Support Retributive Justice?’ in R Surette (ed) Justice and the Media:
Issues and Research (C.C. Thomas,1984), 141.
Interactions Between the Media and the Criminal Justice System 227
D The General Public and the Media
The community relies on the criminal justice system to represent them, and
to do what a reasonable person would consider to be fair and just. They
expect crimes to be met with punishment relative to their culpability and:
[the] imposition of sanctions that are of a nature and of sufficient degree of
severity to adequately express the public‟s abhorrence of the crime for
which the sanction was imposed.121
In order for the public to become aware and thus satisfied that such a
process is being carried out, they must turn to the media. But when they do
they are confronted with a disparate body of information. The types of
offences that are covered by the media are the ones that are least likely to
occur.122
Meanwhile, the common offenses such as theft and burglary
receive almost no air time. Media coverage of sentencing typically provide
for sentences that would be likely to be seen as lenient. A great majority of
sentencing coverage involve imprisonment, with little to no focus on fines
or other orders.123
With consideration of the abovementioned factors, it is no surprise that the
public knows little to nothing about the sentencing process nor the trends of
sentencing. It has been found that the public underestimates the severity of
offences, overestimates the occasions to which offenders are released, and 121
John Tomaino, „Punishment Theory‟, in Rick Sarre and John Tomaino (eds),
Exploring Criminal Justice: Contemporary Australian Themes (South Australian
Institute of Justice Studies, Adelaide, 1999), 162. 122
R Estep and P Macdonald, „How Prime-Time Crime Evolved On TV, 1976-1983‟
(1983) 60 Journalism Quarterly 293, 299. 123
Julian V Roberts and Anthony N Doob, „News Media Influences on Public Views of
Sentencing‟ (1990) 14 Law And Human Behavior 451, 453.
228 The Western Australian Jurist
the number released on parole.124
Surveys throughout the world find that
the public are generally dissatisfied with sentencing regimes, and find that
overall sentencing is far too lenient125
. A number of studies have been
conducted into the links between media coverage, and these perceptions of
the justice system. Roberts & Doob in 1990 demonstrated that upon
exposure to crime stories in the newspaper, ratings of sentence leniency
were significantly high. A very small percentage (16%) considered the
sentences to be too harsh. Other indicators in this research allowed them to
draw conclusions that had more information been provided to the
participants it was likely that they might have had a different view
entirely.126
A second study, into the form of information given to participants and the
effect this has on their perception on the sentence was also conducted.
Participants were assigned different groups, and given different media
accounts of the same crime. Similar to the first mentioned study, high
levels of dissatisfaction with the sentence were found with the tabloid
newspaper‟s account. Accounts that gave more facts as to issues and
factors surrounding the sentencing process were more likely to be
considered favourable, showing that context is key.127
Perhaps the most significant study within the ambit of this research was a
comparison between the provision of a newspaper account of a crime and
124
Ibid. 125
R Broadhurst and D Indermaur „Crime Seriousness Ratings: The Relationship
Between Information Accuracy and General Attitudes in Western Australia‟ (1982) 15
Australian and New Zealand Journal of Criminology 219, 220. 126
Julian V Roberts and Anthony N Doob, „News Media Influences on Public Views of
Sentencing‟ (1990) 14 Law and Human Behavior 451, 456. 127
Ibid.
Interactions Between the Media and the Criminal Justice System 229
consequent sentence, and the official court documents to groups of the
participants. What was found was a significant difference between
participants and the opinion of leniency (63% of media document group
versus 19% of court document group). This shows a significant effect of
the media‟s account of the same information upon the participant.128
What is indicative of these research studies is the position of power media
outlets have over the general public. A clear majority of people in the
community rely on the information they are given on a daily basis by the
media, and perhaps have little or no knowledge how to expand or find
alternative and more accurate accounts of the same fact scenarios. In doing
so they are forced to consume the overly constructed versions of social
reality put forth in order to fulfil their entrenched dependence on
information that assists in their self-preservation monitoring. But by falling
into this paradox of media influence and dependence, they are ultimately
giving away any sense of control over their own attitudes and values.
V CONCLUSION AND RECOMMENDATIONS
What has been discussed in this research is of significance within any
community‟s justice system. Understanding how the public perceives the
justice system is fundamental to its goal in providing the community a way
to reprimand and deter criminality. In order for this goal to be achieved, the
justice system needs to be seen by the community to be effective. The most
common way in which a member of the community can do this is through
interaction with the media. The media has a significant role to play within
128
Ibid.
230 The Western Australian Jurist
the perpetuation of justice, and must take this role seriously. In cases where
a court has placed no restrictions on the publication of proceedings, a great
deal of discretion lays within reporters and the media outlet to select and
portray criminal proceedings in ways that can influence the public.
Research has been discussed through this paper that suggests that media
outlets are not taking heed to this responsibility. They are over-representing
violent crimes, and choosing to consistently screen proceedings which the
public may view as lenient as opposed to those which they would not.
These choices are having a significant effect upon the community in
general. A large portion of the community consistently claims that justice is
not being conducted in a consistent and fair manner. Rather they state that
sentences are inherently lenient and the criminal justice system needs re-
evaluation. These kinds of attitudes can be seen to have developed as per
the various media communication models and theories discussed earlier
with studies having shown that exposure to media accounts in comparison
to more complete documents will change the perception of the participant.
For future development, government departments should take further
extensive research into the effect of media outlets upon the community.
Restoration of community faith in our criminal justice system is key. By
implementing regulations upon our media that could possibly involve one
or more of the following we can strive toward a greater community
development:
Mandatory legal training conducted by the Law Society for all
reporters as to which are the crucial elements of the
proceedings.
Interactions Between the Media and the Criminal Justice System 231
A regulatory body to ensure compliance with legal training,
with the ability to bring actions against media outlets.
Programs to encourage legal awareness amongst the general
public.
Increased accessibility to information surrounding the courts
and the criminal justice process.
More government-funded education in schools about the legal
process, and principles of crime and criminology, to prepare
the future generations to be more discerning of information
given to them.
This list is evidently not exhaustive, and further research will allow for
investigation into the possible effectiveness of these options. What needs to
be done here is a realisation on the part of the executive, and the judiciary
that there is a high level of dissatisfaction on the part of the Australian
community. This dissatisfaction amongst the community is important to
address as it can translate to greater problems within society. Lack of faith
in the effectiveness of the criminal justice system can in many ways reduce
community unity, persuade victims to not report criminal activity and even
increase the possibility of vigilante movements. By addressing this issue
now, we can prepare future generations for a full and deep understanding of
the world around them and a proper appreciation for the work done by
government entities in the combat of crime.